A recent federal district court decision out of New Jersey has contributed to the developing legal debate surrounding whether Form I-864 Affidavits of Support submitted on behalf of immigrant applicant spouses may be invalidated by prenuptial agreements. In Shah v. Shah, Civil No. 12–4648 (RBK/KMW), 2014 WL 185914 (D.N.J. Jan 14, 2014) (memo. op.), the court held that a preexisting prenuptial agreement providing for the waiver of an immigrant spouse’s rights “to spousal alimony, maintenance, or other allowances incident to divorce or separation” could not invalidate the sponsor spouse’s obligation to provide financial support pursuant to an executed Form I-864. The district court decision is a sound one, though perhaps reached by some circuitous logic. For instance, one of the court’s primary arguments in support of its ruling was that “the I-864 could not have been unenforceable if the government accepted it, the government did accept it, therefore the form must be enforceable.”
The more convincing argument is implicit and arrived at by considering language found in Form I-864 itself, which clearly outlines a signing sponsor’s rights and responsibilities, including the limited grounds under which those obligations may be terminated. In order to sponsor an immigrant relative for permanent residence, a sponsor must agree to support that relative at an income level that is at least 125% of the Federal Poverty Guidelines for his or her household size (or 100% if the signing sponsor is an active duty military member). The Form explicitly states that “divorce does not terminate [a signing sponsor’s] obligations under this Form I-864.” It also sets forth the repercussions and damages associated with failing to fulfill the obligations assumed by signing it. An immigrant relative can sue to have the support payments enforced; if s/he was forced to enroll in a means-tested public benefits program, the relevant public agency can demand and/or sue the sponsor for the cost of reimbursement.
Ultimately, the recent Shah decision underscores the fact that the Form I-864 creates a binding contractual relationship between a signing sponsor and the U.S. government. While a signing sponsor agrees to guarantee his or her immigrant relative’s financial security, his or her true obligation is to ensure that the relative does not become a public charge—this is a duty owed to the government and the American public. Accordingly, it follows that such a contractual obligation cannot be waived by an immigrant spouse—who is an intended third party beneficiary in this situation—via a prenuptial agreement. Furthermore, even if an immigrant spouse could waive his or her right to sue for enforcement of the Affidavit of Support, it would not stop him or her from obtaining means-tested public benefits from public agencies, which could then sue the errant signing sponsor for reimbursement.
It is important to note that, on its face, the Shah opinion only applies to the invalidity of Form I-864 waivers involving an immigrant beneficiary and sponsoring spouse who have executed waivers contained in prenuptial and/or premarital agreements. Legal practitioners should explicitly advise their clients that prenuptial agreements cannot waive any rights or obligations established pursuant to a Form I-864. Furthermore, given the precedent Shah and similar cases are establishing, practitioners should be wary of any contractual agreements between signing sponsors and immigrant-beneficiaries that contain provisions relating to Form I-864 rights and/or obligations, as such agreements may very well be equally unenforceable.